Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV039990. Raymond L. Haight III, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In a bifurcated proceeding, a jury found defendant Marco Anthony Cervantes guilty of willful evasion of an officer (Veh. Code, § 2800.2, subd. (a)) for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further, or assist any criminal conduct of its members (Pen. Code, § 186.22, subd. (b)(1)). The trial court thereafter found true that defendant had sustained a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)) and a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced to a total term of 12 years in state prison. Defendant’s sole contention on appeal is that there was insufficient evidence to support the jury’s finding that the crime was committed for the benefit of a criminal street gang. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On December 9, 2006, criminal gang expert Detective Paul Berdnik of the Ontario Police Department obtained information that Frank Medina, a well-respected Black Angel gang member, had died, and his funeral had been scheduled for later that day. Knowing that many active, documented gang members would attend the funeral, Detective Berdnik and his gang suppression unit team set up a surveillance of the funeral at Richardson’s Funeral Home.
Defendant was known by Detective Berdnik to be a member of the Black Angels and to have a moniker of “Pokey.” A field identification (FI) card, which officers complete during consensual encounters with or dispatched calls involving any known or suspected gang member and which have relevant gang-related information such as the contacted person’s gang affiliation, moniker, and associates, of defendant was filled out by Detective Berdnik on July 6, 2006, following a traffic stop of defendant’s vehicle. Another FI card of defendant was filled out by a police officer following a traffic stop of defendant’s vehicle four days later. The FI card listed defendant as a self-admitted Black Angels gang member and documented his gang moniker. An additional FI card of defendant was generated on November 7, 2006. At that time, defendant was in the company of two other known members of the Black Angels gang or its affiliate. Three additional FI cards were filled out in November 2006. The first documented defendant’s attendance at a car wash held on November 10, 2006, for a Black Angels gang member who had died. The second was filled out about a half hour later, when Detective Berdnik and other officers initiated a traffic stop of defendant’s vehicle after seeing him leave the car wash with several Black Angels gang members; one of the occupants was a parolee. The third was filled on November 18, 2006, following a consensual “pedestrian check” of defendant, who was with two known members of the Black Angels gang. A final card was filled out by a police corporal on December 9, 2006, the day of the incident. The card listed defendant’s gang moniker and indicated he was a Junior Black Angel. It was also noted that defendant had the words “Black Angels” tattooed on the back of his head and the letters “B” and “A” tattooed on either side.
Detective Berdnik explained that the Black Angels criminal street gang operates on a three-tiered system: In descending order, its members are affiliated with either the Ontario Varrio Surenos (OSV), the Angelitos Negros (or Junior Black Angels), or the Black Angels. Promotion from one tier to the next is obtained by earning respect within the gang by proving oneself, committing money-making crimes, protecting fellow gang members or killing rival gang members, and/or complying with the requests of senior gang members.
Members of this criminal street gang sported various identifying tattoos, including the words “Black Angels” and the letters “B” and “A.”
On the day of the incident, while conducting surveillance, Detective Berdnik observed defendant attend the funeral along with Steven Vega, a known Black Angels gang member who was a parolee at large with a no-bail warrant for his arrest. In fact, defendant was one of the more than 26 documented gang members seen at the funeral. To ensure officer safety, Detective Berdnik decided to refrain from contacting Vega at the funeral home. The detective, however, did request marked patrol units to respond to the scene in anticipation of Vega’s eventual departure.
About 6:00 p.m., defendant left the funeral home accompanied by Vega and another fellow Black Angels gang member, Joseph Arrez. Defendant, Vega, and Arrez walked to the parking lot and got into a green Chevrolet Malibu: defendant in the driver’s seat, Arrez in the front passenger seat, and Vega in the back seat. Officers followed the car and eventually activated the overhead lights of their patrol car. Defendant slowed down and pulled over to the side of the road next to the curb but then abruptly turned back into the lane and drove off at a high rate of speed. Three patrol cars pursued defendant as he continued to flee, violating traffic laws in the process.
Defendant eventually drove into Black Angels’ gang territory, where he lost control of the car and crashed into a stop sign. After the car crashed, defendant, Vega, and Arrez fled on foot. Detective Berdnik searched the car and located a hat and a handgun on the right rear passenger side. All three were apprehended a short time later and placed under arrest.
Based on his training and experience, Detective Berdnik opined defendant’s actions benefitted his reputation within the Black Angels. The detective explained that he had pulled defendant over before with parolees, and defendant had complied without any problems, but in this instance, defendant evaded the officers to protect Vega, a well-respected member of the gang, and because the gun was in the car. The detective further stated that defendant not only benefitted himself within the gang by fleeing but also benefitted the other gang members by trying to protect their escape. In explaining that defendant was assisting his gang members and thereby increasing his reputation, the detective stated, “This is a guy who’s not on parole; he’s not on probation. He’s not wanted by the police, and he’s willing to stick his neck out and run and potentially go to jail and face criminal charges for his gang so his other gang members can get away.”
II
DISCUSSION
Defendant contends there was insufficient evidence to support the jury’s finding that he committed the crime for the benefit of the Black Angels or that he committed the offense with the specific intent to promote, further, or assist any criminal conduct of the gang members. We disagree.
“... ‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citations.] ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 104.) “We focus on the whole record, not isolated bits of evidence. [Citation.] We presume the existence of every fact the trier of fact could reasonably deduce from the evidence that supports the verdict. [Citation.] If the verdict is supported by substantial evidence, we accord due deference to the verdict and will not substitute our evaluations of the witnesses’ credibility for that of the trier of fact. [Citation.]” (People v. Killebrew (2002) 103 Cal.App.4th 644, 660 (Killebrew).) “We apply the same standard to convictions based largely on circumstantial evidence.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) Thus, substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Section 186.22, subdivision (b)(1) increases the punishment for any person who is convicted of a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” As to the second prong of the enhancement, “specific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members....’” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales); see generally People v. Ramriez (Mar. 30, 2009, G038125) ___ Cal.App.4th ___ [2009 Cal.App. LEXIS 470];see also People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Gang membership alone cannot prove the requisite specific intent. (People v. Gardeley (1996) 14 Cal.4th 605, 623; In re Frank S. (2006) 141 Cal.App.4th 1196, 1199.)
It is well settled in cases where gang offenses and enhancements are alleged, expert testimony regarding the culture, habits, and psychology of gangs is generally permissible because these subjects are “‘“sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. [Citations.]” [Citation.]’ [Citation.]” (Killebrew, supra, 103 Cal.App.4th at p. 656; see also People v. Gardeley, supra, 14 Cal.4th at p. 617; In re Frank S., supra, 141 Cal.App.4th at pp. 1196-1197.) For example, an expert may properly testify concerning “the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant’s membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations].” (Killebrew, at p. 657, fn. omitted.)
“A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a ‘classic’ example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence. [Citation.]” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.) This is true even if the gang expert’s opinion in effect embraces an ultimate issue in the case. (People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 & fn. 3.) “Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible. [Citation.] This rule, however, does not permit the expert to express any opinion he or she may have. [Citation.]” (Killebrew, supra, 103 Cal.App.4th at p. 651.)
Defendant argues there was insufficient evidence to support the gang enhancement because there was no evidence to show he was an active member or associate of the Black Angels gang at the time he fled from the police. He also claims there was insufficient evidence to show he knew Vega was either a fugitive parolee or in possession of a gun or that he acted with the specific intent to assist Vega in evading arrest. Lastly, defendant asserts the gang enhancement is not supported by substantial evidence because that allegation was only based upon Detective Berdnik’s testimony as the gang expert, and such testimony was insufficient as a matter of law to prove the gang allegation.
Defendant’s first claim of error is belied by the record. There was overwhelming evidence to show that defendant was an active member of the Black Angels at the time he fled from the police. The FI cards, surveillance cameras at the funeral home on the day of the incident, tattoos on defendant’s body, and defendant’s wardrobe, and the fact that he was seen getting into a car with other known Black Angels gang members following the funeral of a well-known and respected Black Angels gang member, all evinced his active association with the Black Angels criminal street gang on the day of the incident. The record contains overwhelming evidence to support the findings that defendant was an active member of the Black Angels on the date he fled from the police.
Contrary to defendant’s assertion, there was also substantial circumstantial evidence to show that defendant knew Vega’s status as a fugitive and/or knew he was in possession of a gun. Evidence of defendant’s past compliance with police coupled with evidence that in this case he initially slowed down his vehicle and pulled over to the side of the road permitted a reasonable juror to infer that he thereafter abruptly sped off because he was informed or reminded of Vega’s need to evade police.
In support of substantial evidence arguments, defendant cites to a series of cases that held the testimony of gang experts failed to provide substantial evidence to support the gang allegations. In Killebrew, an expert testified “that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.” (Killebrew, supra, 103 Cal.App.4th at p. 652, fn. omitted.) This testimony provided the only evidence to establish the elements of the gang enhancement. (Id. at p. 658.) Killebrew found the expert’s testimony regarding the minor’s specific intent exceeded “the type of culture and habit testimony found in the reported cases.” (Id. at p. 654.) Instead, the expert “testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action.” (Id. at p. 658.) The expert’s testimony “did nothing more than inform the jury how [the expert] believed the case should be decided.” (Ibid.)
In Frank S., the police arrested a minor who possessed a concealed fixed-blade knife, a bindle of methamphetamine, and a red bandana. The minor explained that he carried the knife to protect himself from a southern gang because they thought he supported the northern street gangs. The minor also stated he had several friends in the northern gangs. The minor was charged with possessing a concealed dirk or dagger, with an enhancement for committing the crime for the benefit of a gang under section 186.22, subdivision (b)(1). To prove this allegation, the prosecution relied almost exclusively on the testimony of a gang expert who opined, among other things, that minor possessed the knife with the specific intent to benefit the gang. (In re Frank S., supra, 141 Cal.App.4th at pp. 1195-1196.)
“When asked her opinion of the minor’s purpose for the knife, the expert stated the minor possessed the knife to protect himself. She also stated a gang member would use the knife for protection from rival gang members and to assault rival gangs. When asked how the minor’s possession of the knife benefited the Nortenos, she responded it helps provide them protection should they be assaulted.” (In re Frank S., supra, 141 Cal.App.4th at pp. 1195-1196.)
Frank S. reversed the juvenile adjudication because the offense was “found to be gang-related based solely upon [the minor’s] criminal history and gang affiliations.” (In re Frank S., supra, 141 Cal.App.4th at p. 1195.) The gang expert improperly testified as to her belief “of the minor’s intent with possession of the knife, an issue reserved to the trier of fact.” (Id. at p. 1199.)
“In the present case, the expert simply informed the judge of her belief of the minor’s intent with possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits the Nortenos since ‘it helps provide them protection should they be assaulted by rival gang members.’ However, unlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang....’ [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) Under those circumstances, the court determined there was insufficient evidence to support the gang enhancement. (Ibid.)
The instant case is distinguishable from Frank S. and Killebrew, because there was an evidentiary basis for the expert’s opinion testimony. First, there is no dispute that the Black Angels gang was a criminal street gang. In fact, the expert explained that the gang operates on a three-tiered system and had over 100 members. Second, there was overwhelming evidence to demonstrate defendant was an active member of the Black Angels gang at the time the offense was committed. There was also ample evidence to show defendant frequently associated with fellow Black Angels gang members and sported the gang’s tattoos on his body. Moreover, on the date of the incident, defendant was one of more than 26 documented Black Angels gang members attending the funeral of a well-respected Black Angels gang member. Additionally, defendant was seen leaving the funeral with fellow Black Angels gang members Arrez and Vega, who was a parolee at large with a no-bail warrant.
Detective Berdnik explained that defendant’s actions in evading the police benefitted himself as well as his fellow Black Angels gang members. The detective elaborated that defendant’s protection of fellow gang members, especially one who, like Vega, was held in high esteem and was in possession of a gun, served to ensure the strength of the criminal street gang and increased defendant’s own reputation within it. In support, the detective testified that during prior encounters with defendant, defendant had “complied with no issues” and had not fled the scene, but in this case, defendant fled to prevent the capture of a well-respected senior member of the gang who was a fugitive and in possession of a gun. The circumstantial evidence strongly implies that defendant knew Vega was on parole at the time of the incident and that Vega had a gun. It also suggests that Vega directed defendant to flee from the police. Defendant’s past history with police, coupled with the fact that defendant was not wanted by police or on probation or parole at the time of the incident, led Detective Berdnik to conclude defendant was “willing to stick his neck out and run and potentially go to jail and face criminal charges for his gang so his other gang members [could] get away.”
There is substantial evidence from which a rational trier of fact could find the gang enhancement true in this case, and we see no basis on this record to second-guess the jury’s findings on this issue. While the gang expert’s testimony was circumstantial evidence, “it was still evidence supporting defendant’s conviction. The hypothetical facts presented to the gang expert were properly rooted in the evidence presented at trial. [Citation.]” (People v. Ferraez, supra, 112 Cal.App.4th at p. 930.) Even if we could reasonably envision a different result on review, we cannot say the jury acted unreasonably in finding the crime was committed for the benefit of, at the direction of, or in association with the Black Angels gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. (See, e.g., People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 [if substantial evidence supports the verdict, the fact that the record could reasonably be interpreted to support a contrary finding will not warrant reversal]; Ferraez, at p. 930 [“[i]t is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation”].)
The prosecutor asked, “Hypothetically speaking, let’s say an individual who’s both in the same gang, but one person has more respect than the other, the person who has less respect, if he basically evades the police and attempts to help the person with more respect, does that benefit his reputation?”
Defendant also cites to several cases that involved factual situations involving multiple gang members or gang claims of responsibility and asserts that the absence of such evidence requires reversal of the gang enhancement in this case. In Morales, supra, 112 Cal.App.4th 1176, 1179-1183, the defendant and two fellow gang members robbed two victims while visiting a house. There was no evidence the victims were associated with any gang. The prosecution’s expert testified the robberies were committed for the benefit of the gang, the gang provided a “‘ready-made manpower pool,’” and one member could count on the loyalty of the others to “‘watch his back.’” Also, “the very presence of multiple gang members would be intimidating” and would benefit the gang “with notoriety among rival gang members and the general public.” (Id. at p. 1197.) The jury found the gang enhancement true, and the defendant argued on appeal there was insufficient evidence he had the requisite specific intent, because the evidence only showed the three men belonged to the same gang.
Morales held the defendant’s intentional acts, “when combined with his knowledge that those acts would assist crimes by fellow gang members, afforded sufficient evidence of the requisite specific intent.” (Morales, supra, 112 Cal.App.4th at p. 1199.) “[S]pecific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members....’ Here, there was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were members of his gang. Moreover,... there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members.” (Id. at p. 1198.)
“[T]he typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.” (Morales, supra, 112 Cal.App.4th at p. 1198.)
In People v. Zepeda (2001) 87 Cal.App.4th 1183, the court rejected the defendant’s claim that the gang expert improperly testified to the ultimate issue of his mental state as to the truth of a gang enhancement, where a gunman who displayed no gang signs during a shooting acted to bolster the gang and his own reputation in general. The prosecutor posed a hypothetical question based on the facts of the case: “‘[W]hy somebody would go to [an area] and ask a person where they were from and then shoot them....’” The expert testified such behavior by a known gang member was likely done for certain gang-related purposes. (Id. at pp. 1208-1209.)
Contrary to defendant’s suggestion, the record here contains the type of supportive evidence as in Zepeda and Morales.
Finally, defendant relies on Garcia v. Carey (9th Cir.2005) 395 F.3d 1099 (Garcia) in support of his argument that there was no evidence he possessed the requisite specific intent to promote or benefit the gang by committing the offense in this case. In Garcia, the defendant and two other people robbed the victim of a bicycle and $14.85. A police officer testified as the gang expert that the defendant and his associates were gang members, the defendant’s gang was “‘turf oriented,’” and its turf included the area where the robbery occurred; he also testified about three other robberies committed by gang members and stated that robberies, often involving small sums of money, were one of the primary activities of the gang. The defendant was convicted of robbery, and the jury found the gang enhancement allegation true. (Id. at pp. 1101-1102.)
As framed by the majority in Garcia, the issue on appeal was whether the evidence was sufficient “to support the jury’s finding of the required specific intent: that is, the intent to ‘promote, further, or assist in’ other criminal activity of the gang apart from the robbery of conviction.” (Garcia, supra, 395 F.3d at pp. 1100-1101, italics added.) In concluding the evidence was insufficient, the majority found nothing in the record “that would support an inference that Garcia robbed Bojorquez with the specific intent to facilitate other criminal conduct by the E.M.F. The evidence indicates that Garcia was a gang member and that he robbed Bojorquez in an area known to be in the heart of the gang’s ‘turf.’ Detective Hernandez, the gang expert, testified that the gang was ‘turf oriented,’ and he described three other robberies committed by E.M.F. members in El Monte during the few months prior to Garcia’s offense. But there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime. There is nothing on the record that connects the ‘turf-oriented’ nature of the gang with the commission of robberies generally, or, more importantly, with the commission of this robbery in particular. There is no testimony that protection of turf enables any other kind of criminal activity of the gang. The expert’s testimony is singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery of Bojorquez.” (Id. at p. 1103, fn. omitted.) The majority agreed with the magistrate, who had found nothing in the record “‘which would support an inference that [Garcia] robbed Bojorquez in order to facilitate other gang related criminal operations within El Monte.’” (Id. at p. 1103.)
The dissenting judge in Garcia took issue with the majority’s interpretation of section 186.22, subdivision (b) and concluded the statute did “not require proof that the crime of conviction was committed with the intent to further some other specifically identified crime or category of crimes....” (Garcia, supra, 395 F.3d at p. 1105 (dis. opn. of Wallace, J.).) He also concluded that the evidence gave rise to a reasonable inference that, when Garcia asked Bojorquez where he was from and identified himself as an E.M.F. member, Garcia intended to intimidate Bojorquez and the owner of the store in which the incident occurred, so that Bojorquez would know not to intrude on E.M.F. turf in the future and so that the store owner would submit to the gang’s dominance. The dissenting judge further opined that it could probably be concluded that this type of intimidation would facilitate the gang’s control of the area and make it easier to commit crimes there in the future. (Id. at pp. 1106-1107, dis. opn. of Wallace, J.)
As a lower federal court decision, Garcia is not binding on this court. (See People v. Hoag (2000) 83 Cal.App.4th 1198, 1205.) It has also been criticized by other appellate courts. (People v. Romero (2006) 140 Cal.App.4th 15, 19; People v. Hill (2006) 142 Cal.App.4th 770, 774.) We agree with Romero and Hill, that the majority opinion in Garcia is not persuasive and misinterprets the California statute, which, by its language, requires a showing of specific intent to promote, further, or assist in “any criminal conduct by gang members” (§ 186.22, subd. (b)(1), italics added), rather than “other” criminal conduct. (Romero, at p. 19; Hill, at p. 774.) Accordingly, we decline to follow Garcia and conclude that the evidence presented in the instant case was sufficient to sustain the gang enhancement in this case.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.
The detective responded, “The way that it’s going to benefit him is, if he just pulls over and gives up, he just gave up two of his well-respected gang members in that car, and the police are going to catch them — obviously, it’s much easier for us to catch them that way; so for him to flee, you know, he’s going to get more respect if he’s trying to get those other criminals away. [¶] If he stays there, he’s going to get looked down upon by those two gang members. And if those two gang members that are all spread out within the gang say ‘Hey, this guy just gave up,’ you know. ‘I’m wanted. I got this gun. I got to get away’ — he’s going to be looked down upon by these other gang members for not trying to get away.” The detective concluded by trying to evade the police, defendant is assisting his gang members, and thus increasing his reputation that he is willing to commit crimes and assist them.